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Statutory Sick Pay – DWP guidance on “fit notes” for employers and doctors

Wednesday, February 24th, 2010

In January, the Department for Work and Pensions (DWP) confirmed that the replacement medical statement, known as the “Statement of Fitness for Work” and now commonly nicknamed the “fit note” to distinguish its use from the “sick note”, will come into use from 6 April 2010 in England, Scotland and Wales. It will also be used in Northern Ireland but the effective date is yet to be confirmed.

The objective of the “fit note”, according to DWP’s latest press release, is to “cut the cost of sick leave for employers” and to “benefit the British economy by an estimated £240 million over the next ten years”.

DWP describes the way in which these benefits will be achieved as follows:

“From 6 April, doctors will be able to advise if a patient ‘may be fit for work’ and offer advice on the effects of their health condition. Doctors will have the option to advise that their patient would be able to work, subject to the employer’s agreement, if temporary changes such as reduced working hours or amended duties could be accommodated.”

In summary, DWP’s guidance for doctors and employers clarifies that:

the advice given on the Statement relates to the functional effects of the patient’s condition within the doctor’s knowledge and expertise and is provided to help the patient’s employer make a more active contribution to the patient’s recovery
the employer, not the doctor, has detailed knowledge of the patient’s work and workplace and, based on the advice offered and discussions with the patient, the employer can consider whether or not to make any necessary changes to support the patient’s return to work
the changes are not about trying to get people back to work before they are ready, but about removing the challenges to them returning.

Guidance for doctors

In these notes,

a “doctor” is a registered medical practitioner, and
an “other health care professional” is a registered nurse, a registered midwife, a registered occupational therapist or physiotherapist, or a member of a regulated health care professional body.

Before considering the effect of the “fit note” on employer procedures, it is helpful to look at its impact on doctors. The key changes for doctors are:

the Statement provides a new option: “you may be fit for work taking account of the following advice”
it no longer provides the option to state that a person is “fit for work”
space is provided to comment on the functional effects of the patient’s condition with tick boxes to indicate basic adjustments or adaptations that could aid the patient’s return to work
in addition to face-to-face consultations, the assessment can be based on a telephone consultation or a report from another doctor or health care professional
the maximum duration of a Statement during the first six months of illness is reduced to three months
the Med 3 and Med 5 forms are combined into one form.

However, aspects of the new arrangement that are not changing are:

there is no requirement for a Statement to be issued until the patient has been off work for more than seven calendar days
the Statement can only be completed by a doctor
patients may still be advised that they are not fit for work
the Statement is still no more than advice from the doctor to the patient
the Statement may be used by the patient as evidence of fitness for work – there is no provision for the patient to be “signed back to work”
the advice given on the Statement is not binding on employers
the Statement can indicate that the doctor does not need to see the patient at the end of the Statement period.

The legislation permits a doctor to specify the patient’s medical condition less precisely where, in the doctor’s opinion, to give the precise condition could be prejudicial to the patient’s well-being or relationship with the patient’s employer.

The doctor may issue the Statement

on the day the patient is assessed,
on a later date if the doctor considers that it would not have been reasonable to issue a Statement on the day of the assessment, or
after having considered a report from another doctor or registered health care professional.

Where the doctor’s assessment is that the patient

is not fit for work, the doctor ticks the “not fit for work” box and indicates either the minimum period for which that will be the case or the dates between which that will be the case
may be fit for work if the employer is able to take certain actions, the doctor
- ticks the “may be fit for work” box,
- ticks one or more of the four suggestion boxes, that the patient may benefit from a phased return to work, altered hours, amended duties or workplace adaptations,
- makes additional comments, including the functional effects of the patient’s condition or conditions.

In the first of these situations,

if the doctor believes that the patient will be fit for work within 14 days of the date of assessment on which the Statement is based, the Statement must give that date instead of specifying a period of time.
if a period of time is specified, it must be a period of not more than three months starting from the date of assessment on which the Statement is based, unless, on the advice of a doctor, the patient has already refrained from work for at least six months prior to that date.
if the patient has already refrained from work for at least six months and, in the doctor’s opinion, will not be fit for work in the foreseeable future, the doctor may enter the words “an indefinite period”.

In the second of these situations, if the employer is unable to apply the doctor’s advice, the Statement has effect as if the doctor had ticked the “not fit for work” box. No further Statement is required to confirm this.

The doctor may issue a further Statement to replace one that has been lost, as long as it is clearly marked “duplicate”.

The particular difficulty that the new arrangement causes for doctors is overcoming a patient’s preconceived belief (or desire) that recovery is only possible by being off work. Doctor’s are encouraged to discuss the health benefits of work, the adverse effects of not working on health, and how obstacles to returning to work could be overcome. If the doctor thinks that work itself is contributing to the patient’s condition or that there are other more complex factors involved, the Statement may suggest to the employer that an occupational health assessment should be considered.

There are no changes to the use of form MatB1 for maternity certification.

It would be sensible for employers to read the guidance for doctors as well as that published for employers. A link to the guidance for doctors is provided below.

Guidance for employers

DWP’s guidance for employers repeats much of the information already given above but there are a number of other issues that employers have to consider on receiving a “fit note” from an employee.

Helping employee return to work

The doctor may have ticked one or more of the four boxes that suggest ways of helping the employee return to work. Any comments made by the doctor are in addition to any reasonable adjustments that an employer is already required to consider if the employee has a disability.

The Statement will indicate the period of time during which the advice applies. Any agreement with the employee to make changes based on that advice should be clear about the length of time involved. Longer term arrangements may be necessary if the employee still cannot return to full duties. The long-term effects of the health conditions should be discussed, taking into consideration relevant disability discrimination obligations.

Phased return to work: The doctor is suggesting that the employee may benefit from either a gradual increase in the intensity of the work duties or in the working hours. For example:

following an operation, an employee might resume work on reduced hours and increase them gradually over an agreed period of time
an employee whose work involves manual lifting but who is suffering with a back or shoulder problem, might gradually increase the quantity or intensity of work, making possible an earlier return to work.

Altered hours: The doctor is suggesting a change to the employee’s working hours, but not necessarily a reduction in the working hours. For example,

a later start or earlier finish to help an employee who cannot drive and cannot cope with rush hour traffic
arranging flexible hours to enable an employee to attend ongoing treatment sessions.

Amended duties: The doctor is suggesting that the employee might be able to return to work if the work duties are adjusted to accommodate the problem condition. For example:

an employee with a back injury could return to work early if heavy lifting were removed from the job for a period
an employee with work stress might be helped by reducing or removing the part of the job causing the pressure.

Workplace adaptations: The doctor is suggesting that changes to the employee’s workplace environment might assist an earlier return to work. The employer may, as a result, need to consider conducting a workplace risk assessment. For example:

providing a ground floor workstation for an employee with arthritis who would otherwise have to use the stairs
providing a parking place near to the workplace while an employee with reduced mobility is recovering from surgery.

Procedural considerations

Employers with sickness absence policies need to review them, consult with employees and their representatives as required, and make appropriate adjustments. Those without defined policies should, nevertheless, ensure that “fit notes” provided by employees are examined carefully and, where the doctor has indicated that the employee “may be fit for work”, consider the doctor’s comments and discuss them with the employee.

In reviewing the doctor’s comments, an employer should consider industry or sector-specific safety guidelines or regulations that the doctor may not be aware of.

If, after considering the doctor’s comments and discussing them with the employee,

it is not possible to make adjustments that would allow the employee to return to work, the reasons should be explained to the employee and the Statement treated as advising “not fit for work”. The employee does not need to revisit the doctor to confirm this.
the employee disagrees with the employer’s proposed support programme and does not wish to return to work, the employer should discuss the issues with the employee further and, if no agreement can be reached, consideration can be given to consulting an occupational health specialist or using internal absence dispute procedures. If the disagreement is over the payment of SSP, HMRC offers specific support in the E14 booklet.

With reference to Employers’ Liability Compulsory Insurance, DWP’s guidance is that allowing an employee who “may be fit for work” to return to work or remain in work should not be in breach of the Liability Insurance Regulations. However, employers with any concerns about liability insurance should contact their insurers. If an employee wishes to return to work early and the employer agrees, a Statement that the employee is fit to return to work is not required, even if the employee is not yet 100% fit, but a risk assessment should be carried out, based on the evidence from the doctor and the employer’s knowledge of the job and the workplace. DWP describes the idea that an employee has to be fully fit to return to work as “a myth”, although some jobs do require confirmation that a person can perform the job safely, such as DVLA rules for LGV and PCV drivers.

The following case studies, taken from the guidance for both doctors and employers, illustrate how doctors will complete the new Statements and how employers may respond to the advice given.

Case study 1

Alison is a 35 year old contact centre worker. Her job requires taking customer calls. She has been off work for 6 weeks with mechanical back pain and this is her third episode in the past 12 months.

She goes to her GP for a new Statement and during the consultation they discuss her condition and the circumstances relating to returning to work. Her GP advises that she ‘may be fit for work taking account of the following advice’:

Comments, including functional effects of your condition(s):
- referred for physiotherapy – may need time off to attend,
- need to avoid static postures by taking more frequent breaks and be able to sit/stand when needs to,
- review workstation, and
- consider a referral for occupational health advice.
Ticked ‘a phased return to work’, ‘amended duties’ and ‘workplace adaptations’.
This will be the case for 8 weeks.
I will need to assess your fitness for work at the end of this period.

Alison takes the latest Statement to her manager and they discuss the advice on the Statement and how her health condition affects her ability to do her usual job. They agree a phased return to work with more frequent breaks during her shifts. Alison returns to work immediately and after 4 weeks is back to her normal hours. Her manager has also organised for an occupational health assessment to identify any action that may help prevent future episodes.

Case Study 2

Kareena is 52 and works in a department store. She has chronic anxiety and has been off work for 3 weeks. Her job involves working on the customer complaints desk as well as general shop floor duties such as stocking shelves and working on the till.

She visits her GP for a new Statement and they discuss whether she can return to work. She would like to return but has concerns about coping with customer complaints that accounts for about a quarter of her duties. Her GP advises she ‘may be fit for work taking account of the following advice’:

Comments, including functional effects of your condition(s):
- phased return to work,
- avoid customer-facing duties, and
- consider creating a support network at work.
Ticked ‘a phased return to work’ and ‘amended duties’.
This will be the case for 3 weeks.
I will not need to assess your fitness for work at the end of this period.Kareena takes the Statement to her employer and they discuss the advice. They agree that Kareena should return to work on a phased return to non-complaints, non-customer facing duties before gradually returning to the complaints desk for shorter then longer periods. An experienced member of the team is nominated as a ‘buddy’ to support her and advise on techniques to deal with handling difficult customer issues. Kareena returns to work immediately and after 3 weeks returns to her normal duties.

Case Study 3

Dave is 30 years old and works in a warehouse of a small building merchant. His job requires lifting. He hurt his dominant (right) shoulder through sport two weeks ago and has been off work since.

He goes to see his GP, is referred for specialist opinion and is given a new Statement. His GP advises that he ‘may be fit for work taking account of the following advice’:

Comments, including functional effects of your condition(s):
- avoid lifting or working above shoulder height.
Ticked ‘amended duties’.
This will be the case for 6 weeks.
I will need to assess your fitness for work at the end of this period.

Dave takes the Statement to his manager and they discuss which parts of his job are affected by his injury. Dave’s normal duties involve the activities that the GP advised to avoid on the Statement. The manager investigates if there are any other suitable duties that Dave could do whilst he recovers, however there are currently none. As Dave’s employer cannot offer any appropriate work Dave remains off work. Dave and his employer use the Statement as if the GP had advised ‘not fit for work’, Dave does not return to his GP for a new Statement. While Dave is off work, he and his manager keep in regular contact to identify the point at which a (phased) return to work could begin. Dave returns to his GP at the end of the Statement period.

Statutory Sick Pay

The DWP guidance for employers says little about the payment of SSP as the employer’s obligations do not change at all as a result of the new Statement. If the Statement states that the employee is “not fit for work”, or is treated as being “not fit for work” because it is not possible for the employer to provide any necessary support, there is entitlement to SSP if the normal conditions are met.

However, some problematic situations are likely to arise if the employer arranges to reduce the employee’s working hours, or puts a phased return to work in place so that the employee is working fewer days. Such arrangements do not change the statutory rules that, if an employee works at all on “a day of incapacity for work”, that day cannot be part of a “period of incapacity for work” (PIW). For example:

An employer arranges for an employee who normally works 8 hours per day over 5 days to work for two hours each day while recovering from an illness, increasing over a period until full time work can be resumed. The 10 hours per week worked initially is less than one week’s SSP and, because the employee works each day, there is no entitlement to SSP. The employer may consider making an additional payment to increase the pay to at least the weekly SSP rate, even though there is no statutory requirement to do so.
Another employee, who normally works 5 days each week and whose Qualifying
Days are Monday to Friday, agrees to work each Monday and Thursday for the four-week period covered by the “fit note”. The employee self-certified for the whole of the first week of sickness, so the first three qualifying days were waiting days and the following two days qualified for SSP. If the employee had been absent for the whole of the next four weeks covered by the Statement, SSP would have been payable for the whole period. However, by working each Monday and Thursday, no further PIWs are formed at all during the four weeks, so no SSP is payable. The pay for the 16 hours worked each week exceeds the SSP that would otherwise have been paid for each week. Again, the employer may consider making an additional payment, although there is no statutory requirement to do so.

The new procedures may also have an impact on the procedures for occupational sick pay schemes and these may also need to be reviewed.

The following flowchart, as provided by DWP, summarises the procedures that employers will need to follow when an employee produces a “may be fit for work” Statement.

Guidance for employees

Help for employees is currently limited to a single page on the DirectGov website. However, instructions for using the Statement are provided on the reverse of the form and doctors can provide a printed fact sheet to give to patients.

The legislation

The legislation governing the provision of medical evidence by doctors and other health care professionals is to be found in two sets of Regulations, namely,

in respect of social security benefits, the Social Security (Medical Evidence) Regulations 1976, and
in respect of statutory sick pay, the Statutory Sick Pay (Medical Evidence) Regulations 1985.

The changes to both sets of Regulations are made by means of the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010.

In each case, the format of a doctor’s statement and the way it is completed and issued are defined in considerable detail in a Schedule to the Regulations. In addition to the explanations given in the article above, the Schedules state, for example, that the Statement must be completed “in ink or other indelible substance”. Blood comes to mind but this definition is presumably intended to cover, for example, laser toner. In contrast, the doctor’s signature must be in ink only!

Separate Regulations are to be made for Northern Ireland.

Further information:

Reforming the Medical Statement

Introduction of important changes to medical statements

Employers and doctors get the facts on fit notes

Statement of Fitness for Work – A guide for General Practitioners and other doctors

Statement of Fitness for Work – A guide for employers

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010

Explanatory Memorandum to the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010

New ‘fit note’ to help you back to work after illness